Citation Nr: 0610467
Decision Date: 04/11/06 Archive Date: 04/26/06
DOCKET NO. 03-20 053 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Philadelphia, Pennsylvania
THE ISSUES
1. Entitlement to service connection for a claimed
laceration to the back.
2. Entitlement to service connection for a claimed left leg
sprain.
3. Entitlement to service connection for a claimed left eye
injury.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
A. Contreras, Associate Counsel
INTRODUCTION
The veteran served on active duty from September 1950 to
March 1951.
This case initially came to the Board of Veterans' Appeals
(Board) on appeal from a November 2002 decision by the RO.
In September 2005, the Board remanded the case for further
development of the record.
FINDINGS OF FACT
1. The veteran is not shown to have manifested a left eye or
left leg injury or a back disorder in service or for many
years thereafter.
2. The veteran currently is not shown to have any left leg
or ankle injury or back laceration residuals due to service.
3. The currently demonstrated mature cataracts of each eye
and the low back degenerative changes are not shown to have
been due to any event or incident of the veteran's period of
active service.
CONCLUSIONS OF LAW
1. The veteran is not shown to have a disability of the left
leg due to an injury or disease that was incurred in or
aggravated by the active service. 38 U.S.C.A. §§ 1110, 1131,
5107, 7104 (West 2002); 38 C.F.R. § 3.303 (2005).
2. The veteran is not shown to have a back disability to
include that manifested by degenerative changes due to
disease or injury that was incurred in or aggravated by the
active service; nor may any arthritis be presumed to have
been incurred therein. 38 U.S.C.A. §§ 1110, 1131, 5107, 7104
(West 2002); 38 C.F.R. § 3.303, 3.307, 3.309 (2005).
3. The veteran is not shown to have an acquired eye
disability to include that manifested by cataracts due to
disease or injury that was incurred in or aggravated by the
active service; nor may any cataracts be presumed to have
been incurred therein. 38 U.S.C.A. §§ 1110, 1131, 5107, 7104
(West 2002); 38 C.F.R. § 3.303 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Veterans Claims Assistance Act of 2000
On November 9, 2000, the Veterans Claims Assistance Act of
2000 (VCAA), (codified at 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107) became law. Regulations implementing VCAA have
since been published. 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
3.326(a). VCAA and implementing regulations apply to the
case at hand, and the requirements therein appear to have
been met.
In this case, the Board finds that all relevant facts have
been properly developed in regard to the veteran's claim, and
no further assistance is required in order to comply with
VA's statutory duty to assist him with the development of
facts pertinent to his claim. See 38 U.S.C.A. § 5103A; 38
C.F.R. § 3.159.
Specifically, the RO has obtained records of treatment
reported by the veteran, and there is no indication from the
record of additional treatment for which the RO has not
obtained, or made sufficient efforts to obtain, corresponding
records.
The record shows that the veteran's service medical records
(SMRs) were likely destroyed by the 1973 fire at the National
Personnel Records Center (NPRC), in St. Louis, Missouri.
Therefore, attempts to locate any such records have been
unsuccessful.
The Board is also satisfied that the RO met VA's duty to
notify the veteran of the evidence necessary to substantiate
his claim in May 2002 and September 2005 letters.
By these letters, the RO also notified the veteran of exactly
which portion of that evidence was to be provided by him and
which portion VA would attempt to obtain on his behalf. See
Quartuccio v. Principi, 16 Vet. App. 183 (2002); see also
Mayfield v. Nicholson, 19 Vet. App. 103 (2005).
In this letter, the veteran was also advised to submit
additional medical records to the RO, and the Board finds
that this instruction is consistent with the requirement of
38 C.F.R. § 3.159(b)(1) that VA request that a claimant
provide any evidence in his or her possession that pertains
to a claim.
Here, the noted "duty to assist" letters were issued prior
to the appealed rating decision (May 2002 letter) and after
the appealed rating decision (September 2005 letter).
Moreover, as indicated, the RO has taken all necessary steps
to both notify the veteran of the evidence needed to
substantiate his claim and assist him in developing relevant
evidence. Specifically, the veteran was provided with VA
examinations in November 2005.
During the pendency of this appeal, on March 3, 2006, the
United States Court of Appeals for Veterans Claims (Court)
issued a decision in the consolidated appeal of
Dingess/Hartman v. Nicholson, Nos. 01-1917 and 02-1506, which
held that the VCAA notice requirements of 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements
of a service connection claim. Those five elements include:
1) veteran status; 2) existence of a disability; (3) a
connection between the veteran's service and the disability;
4) degree of disability; and 5) effective date of the
disability.
The Court held that upon receipt of an application for a
service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R.
§ 3.159(b) require VA to review the information and the
evidence presented with the claim and to provide the claimant
with notice of what information and evidence not previously
provided, if any, will assist in substantiating or is
necessary to substantiate the elements of the claim as
reasonably contemplated by the application. Dingess/Hartman,
slip op. at 14.
Additionally, this notice must include notice that a
disability rating and an effective date for the award of
benefits will be assigned if service connection is awarded.
Id.
In the present appeal, the veteran was provided with notice
of what type of information and evidence was needed to
substantiate his claims for service connection, but he was
not provided with notice of the type of evidence necessary to
establish a disability rating or effective date for the
disabilities on appeal.
Despite the inadequate notice provided to the veteran on
these latter two elements, the Board finds no prejudice to
the veteran in proceeding with the issuance of a final
decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993)
(where the Board addresses a question that has not been
addressed by the agency of original jurisdiction, the Board
must consider whether the veteran has been prejudiced
thereby).
In that regard, as the Board concludes below that the
preponderance of the evidence is against the veteran's claims
for service connection, any questions as to the appropriate
disability rating or effective date to be assigned are
rendered moot.
Accordingly, the Board finds that no prejudice to the veteran
will result from an adjudication of his claim in this Board
decision. Rather, remanding this case back to the RO for
further VCAA development would be an essentially redundant
exercise and would result only in additional delay with no
benefit to the veteran. See Bernard v. Brown, 4 Vet. App.
384, 394 (1993); see also Sabonis v. Brown, 6 Vet. App. 426,
430 (1994) (remands which would only result in unnecessarily
imposing additional burdens on VA with no benefit flowing to
the veteran are to be avoided).
Factual Background
The July 1949 enlistment examination is negative for any
disabilities of the left leg, back or eyes.
The DD Form 214 indicates that the veteran entered service in
September 1950 at Wilkes-Barre, Pennsylvania, was a member of
the 28th Infantry Division, 109th Field Artillery Battalion,
and separated at Camp Atterbury, Indiana at the convenience
of the government, due to physical disqualification.
In a November 2001 statement, the veteran indicated that in
September 1950, while on his way to Camp Atterbury, Indiana,
he was injured in a railroad accident, sustaining a
laceration to his back, a badly sprained left leg and an
injured left eye. He noted being treated at a hospital at
Camp Atterbury.
In an April 2002 statement, a fellow veteran reported that he
and the veteran were involved in a train accident in
September 1950. He stated that they assisted the medics with
the injured and the dead.
The November 2005 VA orthopedic examination indicates that
the veteran's claims file was reviewed. The veteran stated
that, while in the service, he was involved in a train
accident. He reported twisting his left ankle near the train
and getting cut on his back.
The veteran testified that, at the hospital, his back was
examined and ointment applied. No suturing was done. He
stated that an X-ray study of his ankle was done, and he was
told he had a sprain. He reported developing blindness in
one eye and being discharged from the miliary some time after
that.
The veteran stated that neither his left ankle or leg nor his
back bothered him and that he did not see a doctor
specifically for either his left leg or his back.
On examination, the veteran reported having no left ankle
pathology. He stated that he occasionally had a bit of pain
behind his medial malleolus. There was slight tenderness
posterior to the medial malleolus. His gait was normal.
With regard to the veteran's spine and back, the examiner
stated that he did not "definitely" see residuals of the
laceration of his back. The range of motion of the spine was
limited.
The X-ray studies of the tibia and fibula showed intact left
tibia and fibula. The X-ray studies of the lumbosacral spine
showed advanced degenerative changes L4-L5 with first degree
spondylolisthesis, disc space narrowing, amorphic
calcification anteriorly, and mild L3-4 disc space narrowing.
The impression was that of degenerative disc disease or
degenerative arthritis of the lumbar spine. No abnormality
was found in the left ankle.
The examiner noted that several motions were repeated without
change, and there was no clinical evidence of reduced range
of motion or function with repetition. No true flare-ups
were noted.
The examiner noted that the veteran voice any complaints
concerning the left leg or back. The examiner stated that it
was "unlikely that a laceration treated with ointment in the
thoracic region would be a significant cause of degenerative
disc disease of the low back or lumbar spine. This was less
likely than not."
The November 2005 VA ophthalmology examination indicates that
the veteran's claims file was reviewed. The examiner noted
that the veteran had eye examinations at his local VAMC in
June 2005 and September 2004. The veteran stated that, prior
to those examinations, he had not had an eye examination
since 1950.
The veteran reported that he was involved in a train crash
while on active duty. To his recollection, he had no ocular
pain or decrease in vision immediately following the train
crash.
However, approximately 2 to 3 months later, he lost vision in
his left eye. The veteran stated that he was hospitalized,
but no reason for his decrease in vision was determined. He
noted that over the next few months, his vision returned to
normal.
The veteran complained of having some blurred vision, near
and far. He also had episodes where he would see stars and
sparks. He noted that such episodes had been occurring
episodically since the time of the train wreck. It was noted
that the veteran had not had any ophthalmic surgery. An eye
examination was performed.
The examiner stated that there was no evidence of a prior
ocular injury in either eye. It was noted that, without
records, the cause of any possible visual loss in the past
could not be determined.
The diagnosis was that of mature cataracts, left eye greater
than right. It was noted that the cataracts were responsible
for the decrease in vision. There were also symptoms
consistent with ophthalmic migraines; however, there was no
evidence of vision loss from the ophthalmic migraines.
A November 2005 Report of Contact form indicates that the
veteran stated that he had no additional evidence to submit.
Law and Regulations
In order to establish service connection for a claimed
disorder, there must be (1) medical evidence of a current
disability; (2) medical, or in certain circumstances, lay
evidence of the inservice incurrence or aggravation of a
disease or injury; and (3) medical evidence of a nexus
between the claimed inservice disease or injury and the
current disability. Hickson v. West, 12 Vet.App. 247, 253
(1999).
Service connection will be granted if it is shown that a
veteran has a disability resulting from an injury or disease
contracted in the line of duty, or for aggravation of a
preexisting injury or disease in active military service.
See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303
(2005).
If a condition noted during service is not shown to be
chronic, then generally a showing of continuity of symptoms
after service is required for service connection. See 38
C.F.R. § 3.303(b) (2005).
Service connection may also be granted for any disease
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d).
Where a veteran served continuously 90 days or more during a
period of war or during peacetime service after December 31,
1946, and arthritis becomes manifest to a degree of at least
10 percent within one year from the date of termination of
service, such disease shall be presumed to have been incurred
in or aggravated by service, even though there is no evidence
of such a disorder during the period of service. 38 U.S.C.A.
§§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307,
3.309 (2004). This presumption is rebuttable by affirmative
evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113;
38 C.F.R. §§ 3.307, 3.309.
When there is an approximate balance of evidence regarding
the merits of an issue material to the determination of the
matter, the benefit of the doubt in resolving each such issue
shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38
C.F.R. § 3.102 (2005).
In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the
United States Court of Appeals for Veterans Claims stated
that "a veteran need only demonstrate that there is an
'approximate balance of positive and negative evidence' in
order to prevail."
The United States Court of Appeals for the Federal Circuit
(Federal Circuit) has held that "when the positive and
negative evidence relating to a veteran's claim are in
'approximate balance,' thereby creating a 'reasonable doubt'
as to the merits of his or her claim, the veteran must
prevail." Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir.
2001).
Analysis
The documentation in claims folder indicates that the
veteran's service medical records (SMRs) were likely
destroyed by the 1973 fire at the National Personnel Records
Center (NPRC), in St. Louis, Missouri.
In cases such as this, VA has a "heightened" duty to
explain its findings and conclusions and to consider
carefully the benefit-of-the-doubt rule. O'Hare v.
Derwinski, 1 Vet. App. 365, 367 (1991). The Board's analysis
of this veteran's claim, then, must be undertaken with this
duty in mind due to the special circumstances of this case.
The Board notes that the veteran was discharged from service
in March 1951 due to physical disqualification. Nothing in
the available records indicates the nature of the physical
ailment that resulted in his disqualification.
As to the veteran's claim of service connection for a left
leg/ankle sprain and a laceration to the back, the Board
finds no current medical evidence of any related disability
involving the left leg or back.
Specifically, the November 2005 VA examination did not show
any left leg or ankle injury or low back laceration
residuals.
The X-ray studies showed a normal left tibia and fibula. No
residuals of a laceration to the back were noted. The VA
examiner also opined that it was "unlikely that a laceration
treated with ointment in the thoracic region would be a
significant cause of degenerative disc disease of the low
back or lumbar spine. This is less likely than not."
The Board notes that service connection cannot be granted for
a disability that is not currently manifested; see Brammer v.
Derwinski, 3 Vet. App. 223 (1992). In this case, a current
disability attributable to a claimed left leg or ankle injury
or a laceration to the back in service has not been
demonstrated by competent evidence.
Significantly, though requested, the veteran has submitted no
evidence of any treatment for a left leg or ankle or back
condition in the years after service.
The Board must therefore conclude that the preponderance of
the evidence is against the veteran's claim for service
connection for a left leg sprain and laceration of the back.
Accordingly, the benefit-of-the-doubt standard of proof does
not apply, and service connection for a left leg sprain and a
claimed laceration to the back is denied. 38 U.S.C.A. §
5107(b) (West 2002).
As to the veteran's claim for service connection for a
claimed left eye injury, the Board notes that the veteran has
a current diagnosis of mature cataracts, left eye greater
than right.
The first evidence of this eye disability was the November
2005 VA examination that found them to be responsible for the
decrease in vision.
Also noted were symptoms consistent with ophthalmic
migraines; however, there was no evidence of vision loss from
the ophthalmic migraines. This evidence comes more than 50
years after the veteran's discharge from service.
Additionally, the veteran stated that, after his discharge
from service, he did not receive treatment for his eye
condition until 2004.
The Board notes that the veteran's service medical records
are not available and it cannot be determined whether the
veteran suffered an eye injury while in service.
No competent evidence has been submitted in this regard that
show the presence of an acquired eye disability due an injury
or other event of the veteran's military service.
Furthermore, in the November 2005, the VA examiner found no
evidence of a prior injury of either eye.
In light of these circumstances, the Board must conclude that
service connection is not warranted for the claimed eye
disability.
Accordingly, the Board finds that the preponderance of the
evidence is against the claim of service connection for the
claimed left eye injury. The benefit-of-the-doubt rule does
not apply, and the claim must be denied. 38 U.S.C.A. §
5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990).
Although the Board does not question the sincerity of the
veteran's conviction that his claimed left leg disability,
claimed laceration to the back, and claimed left eye injury
are related to or had its onset during service, the Board
notes that, as a lay person, he is not competent to establish
a medical diagnosis or show a medical etiology merely by his
own assertions; such matters require medical expertise. 38
C.F.R. § 3.159(a)(1) (Competent medical evidence means
evidence provided by a person who is qualified through
education, training or experience to offer medical diagnoses,
statements or opinions); see also Duenas v. Principi, 18 Vet.
App. at 520; Charles v. Principi, 16 Vet. App. at 374-75; cf.
Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v.
Derwinski, 2 Vet. App. 492, 494-95 (1992).
ORDER
Service connection for a laceration to the back is denied.
Service connection for a left leg sprain is denied.
Service connection for a left eye injury is denied.
____________________________________________
STEPHEN L. WILKINS
Veterans Law Judge,
Board of Veterans' Appeals
Department of Veterans Affairs